Beaver v. State , 2014 Ark. App. 188 ( 2014 )

Cite as 2014 Ark. App. 188
ARKANSAS COURT OF APPEALS
DIVISION I
No. CR-13-337
Opinion Delivered March 19, 2014
BYRON KEVIN BEAVER
APPELLANT APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
[NO. CR-2011-1009]
V.
HONORABLE DAVID L.
REYNOLDS, JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED
JOHN MAUZY PITTMAN, Judge
Appellant was residing with his wife and children in Faulkner County when his wife
discovered that appellant was sexually abusing their son, who was then about seven years old.
Appellant was charged with and convicted of three counts of rape and received three
consecutive sentences totaling ninety years’ imprisonment. His sole argument on appeal is
that one of those counts should be reversed because there was insufficient evidence of
penetration. We affirm.
When reviewing a challenge to the sufficiency of the evidence, we view the evidence
in the light most favorable to the State and consider only the evidence that supports the
verdict. Breeden v. State, 2013 Ark. 145, ___ S.W.3d ___. We will affirm a conviction if
substantial evidence exists to support it. Id. Substantial evidence is evidence which is of
sufficient force and character that it will, with reasonable certainty, compel a conclusion one
way or the other, without resorting to speculation or conjecture. Id. A rape victim’s
Cite as 2014 Ark. App. 188
uncorroborated testimony describing penetration may constitute substantial evidence to
sustain a conviction of rape, even when the victim is a child. Woods v. State, 2013 Ark. App.
739, ___ S.W.3d ___. The rape victim’s testimony need not be corroborated, and scientific
evidence is not required. Id. Moreover, it is the function of the jury, and not the reviewing
court, to evaluate the credibility of witnesses and to resolve any inconsistencies in the
evidence. Breeden, supra.
Appellant was charged with rape under Arkansas Code Annotated section 5-14-
103(a)(3)(A) (Repl. 2009). That section provides that a person commits rape if he or she
engages in sexual intercourse or deviate sexual activity with another person who is less than
fourteen years of age. Deviate sexual activity includes any act of sexual gratification involving
the penetration, however slight, of the mouth of a person by the penis of another person.
Ark. Code Ann. § 5-14-101(1)(A) (Supp. 2009).
The incident in question took place at the Faulkner County home of the victim’s
Aunt Sherry. When asked at trial how appellant touched him on that occasion, the then
eight-year-old victim responded “the same way he did almost every time.” Appellant argues
that this is too ambiguous to support a finding of penetration and that his conviction for rape
on this count is therefore not supported by substantial evidence. We do not agree. We
conclude that the boy’s testimony regarding the nature of the abuse makes it clear that the
way appellant violated him “almost every time” was by putting the boy’s penis in his mouth.
Testifying about the abuse, the boy said:
I call that body part that I just touched there [a penis] the tenders. I use my
tenders for going to the bathroom. I’m okay. When I say that [appellant] would
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Cite as 2014 Ark. App. 188
touch my tenders, he would use his hand to touch my tenders, sometimes. There
were other body parts that he would touch my tenders with. He would use his
mouth. As to how he would touch my tenders with his mouth, he would go up and
down with his mouth. When he would go up and down with his mouth, my tenders
were in his mouth. . . . This happened at my house, at the lake house. . . . It
happened in my room and my parents’ [room]. When he would touch my tenders,
when his mouth would be on my tenders, this would happen in the bed. . . . It was
just my dad and I in the room where this happened in my house. I remember it was
at nighttime.
I have an Aunt Sherry. . . . [Appellant] touched me in Aunt Sherry’s house.
I remember I was in the bedroom at Aunt Sherry’s house. When I was at Aunt
Sherry’s house, he would touch me the same way he did almost every time. . . .
There were other places besides Aunt Sherry’s house and my lake house that my dad
touched me. That was at the White River and the deer camp. . . . I call that the
bottoms. My dad touched me there. That happened at the White River only; that
only happened at the White River. I remember how he touched me there; he put
his finger—on my bottom. When I say on my bottom, I mean like on the inside.
The abuse at the White River (which was not charged here because it did not occur
in Faulkner County) was unique in that it was the only time, according to the victim’s
testimony, that appellant digitally penetrated the victim’s anus. When the victim’s entire
testimony is read in context, we think that the jury could reasonably have concluded that
appellant’s usual practice was to touch the victim’s penis with his hands and place the victim’s
penis in his mouth, and that this is what the victim was referring to when he testified that
appellant touched him at Aunt Sherry’s house “the same way he did almost every time.”
Affirmed.
WYNNE and BROWN, JJ., agree.
Jack T. Lassiter and John Wesley Hall, for appellant.
Dustin McDaniel, Att’y Gen., by: Jake H. Jones, Ass’t Att’y Gen., for appellee.
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